Three Ways to Improve Life in Custody

This is the fourth and last article of our series on the country’s prison and custody system. You can view the first, second and third installment of the series here and here and here.

Michael Edison Hayden

Pictured, P A Sebastian, co-founder of the Committee for Protection of Democratic Rights.

In 1977, P.A. Sebastian co-founded the Committee for Protection of Democratic Rights, a human rights organization specializing in legal and institutional reform. Around 35 years later, despite health complications, Mr. Sebastian is still hard at work. And while he believes that India’s legal system has improved over the past four decades, he still sees a pressing need for reform, particularly in the area of prisons.

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Along with Mr. Sebastian, I spoke with Mihir Desai, a private practice and criminal lawyer at the high court level, and Vijay Raghavan, a professor of criminology and justice at the Tata Institute of Social Sciences in Mumbai, about what is needed to reform India’s prison system.

Here are three areas they say should be prioritized to improve the country’s prison system.

More Judges. According to a 1987 study by India’s Law Commission, a government body, there were roughly 10.5 judges per one million citizens. The figures haven’t improved much since: in 2008, then law minister H.R. Bhardwaj said the ratio was 14 judges per one million citizens. These are the latest available figures.

Compare this to figures in the U.S., where there are around 110 judges per one million residents, according to a 2002 United Nations study.

Increasing the number of judges is one way of addressing what many experts say is the main problem with India’s prison system: the vast number of prisoners who are awaiting trial. Reducing jail time before conviction “is obviously the biggest issue, and it requires the most immediate attention,” argues Mr. Sebastian.

According to India’s National Crime Records Bureau, as of 2010, 65.1% of India’s roughly 240,000 jail occupants were waiting for trial. According to the same study, 1,659 prisoners, or 0.7% of the total, had been jailed for five years without their trials starting. Mr. Desai estimates that the majority of criminal trials take between three to ten years to complete, only after they actually begin.

While time spent waiting for trial is subtracted from time spent after any conviction, this also leaves many potentially innocent people spending time in prison for crimes they did not commit, critics say. We looked at one such case in part one of this series.

India has taken steps over the last decade to address this issue with the implementation of fast-track courts for specific crimes with the hopes of clearing away the massive backlog of cases waiting to be heard.

But some, like Mr. Raghavan, argue that fast-track courts are only temporary measures, which he worries adds pressure on justices to rush to conviction, due to the emphasis placed on time, rather than justice.

Asked how to cure those root problems, Mr. Raghavan goes straight to the point. “We need more justices,” he says. One way of increasing the number of judges would be to boost funding, making the career path more appealing for talented, young Indians.

Stronger anti-torture legislation. A bill aimed at preventing torture at the hands of public servants is currently pending parliamentary approval. First introduced in Parliament in 2010, the “Prevention of Torture Bill” seeks to punish government officials who participate in torture, defining it as a “grievous hurt” or “danger to life, limb or health.” The bill is currently being reviewed by a parliamentary committee, and it’s unclear how soon lawmakers will be asked to vote on it.

Activists say custodial torture is a widespread problem in India. A report issued last year by the Asian Center for Human Rights, a Delhi-based non-governmental organization, says that over 1,504 people in India died in police custody before having been sent to trial between 2001 and 2011. The group based its study on data provided by the National Human Rights Commission, a government-affiliated body.

The data does not include deaths in army custody, suggesting the overall number of custodial deaths in the country may be higher, given the large army presence in restive Kashmir, the report says. Indian army personnel are shielded from prosecution in Kashmir, which is divided between India and Pakistan but claimed in its entirety by both, by the Armed Forces Special Powers Act. The army says immunity from prosecution is necessary to confront anti-India militants in the region who pose a threat to the civilian population.

Activists allege that torture in Kashmir occurs mostly in “interrogation cells,” or makeshift jails that exist outside of the jurisdiction of state government control. An army spokesman said that interrogation cells in Kashmir are no longer in use due to an overall decrease in military operations throughout that region. “These are things from the past that are being phased out now as Kashmir enters a more peaceful time,” he said.

The stated purpose of the anti-torture bill is to ratify the 1975 United Nations Convention Against Torture, which India has signed. But critics say the bill is flawed, permitting loopholes for things like psychological torture, and that it defines torture in narrower terms than the U.N. convention. Non-governmental groups like the Delhi-based Asian Human Rights Commission are also critical that the bill places a time limit of six months for victims to file complaints of abuse.

Torture in prisons and in police custody is illegal in India. India’s home ministry, which drafted the bill, hopes it will make it easier for prisoners to seek prosecution against alleged abuse, deterring public officials from carrying out torture in the future.

Suresh Kumar, a senior official at India’s Ministry of Home Affairs, declined to comment on criticisms to the bill. A ministry spokesman did not respond to request for comment.

Better legal services for the disadvantaged. India has a system for providing legal aid to those who require it in the form of the National Legal Services Authority. It is designed to help the majority of India’s prison population that is in need of assistance in their legal representation, either because of poverty, a lack of education or both.

“Because the majority of prisoners in India are very poor, the court system often works against their interests,” says Mr. Sebastian, referring to how hard it is for low-income people to afford good legal assistance in India.

According to government data from 2010, out of 125,789 convicted inmates, the majority of inmates – 74.9% – were either illiterate (37,994) or had not been educated beyond the tenth grade (56,264), when most students are around 15 years old.

Those who are eligible to free legal aid includes women, children, anyone with assets worth less than 100,000 rupees ($1840) and members of groups that have been historically discriminated against under India’s caste system.

But too few of those who are eligible to free legal assistance turn to NALSA, according to Sharath Chandran, a senior official at the organization.

The problem, he says, is that many in India do not know they are entitled to free legal assistance. “We are trying very hard to reach these people who are under trial for so many years. We want to help them but the problem is that they may not know of our existence,” he says.

Mr. Chandran says it is the responsibility of state level courts to inform prisoners of the existence of NALSA.

A former practicing lawyer and judge, Mr. Chandran hopes to reach India’s many underprivileged prisoners by introducing a project aimed at spreading awareness among inmates about their rights through the help of paralegals whose job it is to enter prisons and inform people of their right to legal assistance.

Mr. Raghavan, for his part, explains that in order to sufficiently fulfill its stated duties, NALSA needs to pay defense attorneys more money to take on cases. But the rate of pay for lawyers is assigned by local jurisdictions to NALSA cases and fluctuates depending on what state and what city the trial is held.

“The honorarium that is placed to the lawyers is woefully low. For example, in Maharashtra, the honorarium for lawyers to take such a case is only a few hundred rupees per trial, depending on location,” he explains.

Mr. Raghavan believes that the unappealing rate of pay for public defenders that handle NALSA’s case work at the state level, coupled with the long waiting periods for cases to go to trial, creates needless obstacles to justice for India’s poor. “There’s so much pressure on the lawyers to dispose of cases that it becomes difficult to give adequate attention to the defendant at hand. And if a prisoner is not well represented, there is no one to protect his or her rights,” he says.

– Vibhuti Agarwal contributed to this article.

Michael Edison Hayden is an American writer currently living in Mumbai.

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